Kansas Attorney General Opinion 1992-034

ROBERT T. STEPHAN
ATTORNEY GENERAL March 9, 1992
ATTORNEY GENERAL OPINION NO. 92- 34
Paul J. Morrison
District Attorney
Johnson County Courthouse
P.O. Box 728, 6th Floor Tower
Olathe, Kansas 66061
Re: Criminal Procedure -- Preliminary Proceedings --
Domestic Violence Calls; Written Policies Adopted
by Law Enforcement Agencies; Contents; Liability
Procedure, Civil -- Protection from Abuse Act --
Commencement of Proceedings; Personal Service
Synopsis: A law enforcement officer acting within the scope
of employment who arrests the "primary aggressor"
pursuant to a written agency policy regarding
domestic violence calls adopted pursuant to K.S.A.
1991 Supp. 22-2307 is not liable for damages
resulting from the enforcement of such policy. In
addition, the administrative judge may appoint law
enforcement officers as process servers for
purposes of serving protection from abuse
documents. The plaintiff in a protection from
abuse case may be considered an agent of the clerk
for purposes of delivering appropriate documents to
an appointed process server. Cited herein: K.S.A.
22-2308;
60-3106; 60-3107.
21-3721; K.S.A. 1991 Supp. 22-2307;
60 - 303; 60-3101; 60-3104; 60-3105;

Dear Mr. Morrison:
You ask our opinion regarding potential for police officer
liability in carrying out policies established for handling
domestic violence calls. In addition you ask our opinion
regarding the requirement of personal service of emergency
protection from abuse orders.
Concerning the first issue, you inform us that pursuant to
K.S.A. 1991 Supp. 22-2307 your jurisdiction has adopted a
written policy regarding domestic violence calls. Your policy
advocates the arrest of the "primary aggressor" in a domestic
violence situation. You inform us that in many domestic
violence situations both parties may have technically
committed a battery. In light of these situations you ask
whether an officer who follows the written policy by arresting
the "primary aggressor" may be exposed to civil liability for
selecting the party to be arrested.
K.S.A. 1991 Supp. 22-2307 requires all law enforcement
agencies in Kansas to adopt written policies regarding
domestic violence calls. The policy is to include statements
of various persons' responsibilities and procedures, including:
"[A] statement describing the responding
officers' responsibilities and procedures
to follow when responding to a domestic
violence call and the suspect is at the
scene; . . . ." K.S.A. 1991 Supp.
22-2307(b)(4).
We assume the policy of arresting the "primary aggressor" was
adopted pursuant to the foregoing subsection. We also assume
that in the scenario you present that the "primary aggressor"
is identifiable.
It appears that in enacting K.S.A. 1991 Supp. 22-2307, the
Kansas legislature considered the issue you raise and
simultaneously enacted K.S.A. 1991 Supp. 22-2308:
"No law enforcement agency or employee of
such agency acting within the scope of
employment shall be liable for damages
resulting from the adoption or
enforcement of any policy adopted under
this act unless a duty of care,
independent of such policy, is owed to the

specific individual injured." (Emphasis
added).
In the situation you present the officer would be acting
within the scope of employment and would be enforcing a
written domestic violence call policy adopted under this act.
Absent a duty of care owed to the "primary aggressor"
independent of the domestic violence call policy and given the
protection provided by K.S.A. 1991 Supp. 22-2308, it is our
opinion that a police officer would not be found liable for
failing to also arresting the "secondary aggressor."
In addition, the Kansas tort claims act provides:
"A governmental entity or an employee
acting within the scope of the employee's
employment shall not be liable for damages
resulting from:
"(c) enforcement of or failure to enforce
a law, whether valid or invalid,
including, but not limited to, any
statute, regulation, ordinance or
resolution; . . . ." K.S.A. 75-6104(c).
This subsection provides immunity from civil liability to
police officers who may fail to enforce the battery statute
against the "secondary aggressor" in the situation you
describe.
Your next question involves the interplay of the criminal
trespass statute, K.S.A. 21-3721, with the protection from
abuse act, K.S.A. 1991 Supp. 60-3101 et seq.
Pursuant to K.S.A. 1991 Supp. 60-3105, upon the filing of a
verified petition, an emergency protection from abuse order
may be issued ex parte,
"[g]ranting possession of the residence or
household to a party to the exclusion of
the other party, and further restraining
the party not granted possession from
entering or remaining upon or in such
residence or household, subject to the
limitation of subsection (c). Such order
shall contain a statement that if such

order is violated, such violation shall
constitute criminal trespass as provided
in subsection (c) of K.S.A. 21-3721, and
amendments thereto." K.S.A. 1991 Supp.
60-3107(a)(2).
Such an emergency order expires when the court is available or
within 72 hours, whichever occurs first. At that time, the
plaintiff may seek a temporary protection from abuse order
from the court. K.S.A. 1991 Supp. 60-3105(b). A temporary
order may be entered pending a hearing on the plaintiff's
allegation of abuse. K.S.A. 1991 Supp. 60-3106.
As you point out, before such an emergency order becomes valid
and enforceable it must be personally served on the
defendant-abuser. K.S.A. 1991 Supp. 60-3104(c). In
addition the abuser may not be arrested for criminal trespass
until personally served with the order. K.S.A. 21-3721(c).
You inform us that you regularly encounter situations where an
abuser enters or remains in the residence when an emergency
order has been issued but not yet personally served. If the
police are called they are unable to arrest the abuser for
criminal trespass. You ask whether the following would
provide a method to resolve this situation: The
administrative judge appoints all law enforcement officers
within the county as process servers for purposes of the
protection from abuse act. The clerk provides the
plaintiff-victim with a certified copy of the protection from
abuse emergency order. When the police arrive the
plaintiff-victim gives the order to the officer who then
personally serves it on the defendant-abuser who may then be
arrested for criminal trespass if such person continues to
remain on the premises.
The legal procedure for personal service is set forth in
K.S.A. 1991 Supp. 60-303(c):
"(1) When the plaintiff files a written
request with the clerk for service other
than by certified mail, service of process
shall be made by personal or residence
service. Personal service shall be made
by delivering or offering to deliver a
copy of the process and accompanying
documents to the person to be served. . • •

"(2) When process is to be served under
this subsection, the clerk of the court
shall deliver the process and sufficient
copies of the process and petition, or
other document to be served, to the
sheriff of the county where the process is
to be served or, if requested, to a person
appointed to serve process or to the
plaintiff's attorney.
"(3) Service of all process under this
subsection shall be made by a sheriff
within the sheriff's county, by the
sheriff's deputy, by an attorney admitted
to the practice of law before the supreme
court of Kansas or by some person
appointed as a process server by a judge
or clerk of the district court, except
that a subpoena may also be served by any
other person who is not a party and is not
less than 18 years of age. Process
servers shall be appointed freely and may
be authorized either to serve process in a
single case or in cases generally during a
fixed period of time. . . ." (Emphasis
added).
Pursuant to subsection (c)(3), the administrative judge may
appoint law enforcement officers as process servers for a
fixed period of time. In addition the statute does not
prevent the judge from limiting the authority of such process
servers to service of protection from abuse documents if that
is desired.
While K.S.A. 1991 Supp. 60-303(c)(2) requires the clerk to
deliver the process and documents to be served to a person
appointed to serve process, the method of such delivery is not
specified. We see no reason why the plaintiff-victim could
not be considered an agent of the clerk for purposes of
delivering the appropriate documents to an appointed process
server, in this case a law enforcement officer called to the
scene. The officer could then arrest the defendant-abuser for
criminal trespass if such person refuses to leave the
residence or household.
In conclusion, a law enforcement officer acting within the
scope of employment who arrests the "primary" aggressor
pursuant to a written agency policy regarding domestic

violence calls adopted pursuant to K.S.A. 1991 Supp. 22-2307
is not liable for damages resulting from the enforcement of
such policy. In addition, the administrative judge may
appoint law enforcement officers as process servers for
purposes of serving protection from abuse documents. The
plaintiff in a protection from abuse case may be considered an
agent of the clerk for purposes of delivering appropriate
documents to an appointed process server.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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